Endangered Species Law & Policy

On March 28, 2019, a federal judge overturned the U.S. Fish and Wildlife Service’s (USFWS) rejection of a petition to delist an endangered karst invertebrate species, the Bone Cave harvestman (Texella reyeisi) (BCH), which is known to occur only in central Texas.

American Stewards of Liberty and others (Plaintiffs) had claimed that USFWS’ rejection of a 2014 petition to delist the BCH was arbitrary and capricious because, among other things, USFWS based its rejection on the petition’s supposed failure to provide BCH population trend data that was unavailable and is ...

On March 27, 2019, the Supreme Court of the United States heard oral argument in Kisor  v. Wilkie (No. 18-15), focusing on whether Auer deference should be overruled.  While the dispute is not environmental in nature, this case has nonetheless attracted significant attention from the environmental community due to the potentially significant implications to environmental litigation.  Auer deference (or Seminole Rock deference) requires courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations.  Enforcement actions ...

On March 15, 2019, the U.S. Fish and Wildlife Service (Service) issued a proposed rule to remove the gray wolf (Canis lupus) from the List of Endangered and Threatened Wildlife.  As we reported here, the Service announced its intention to issue the proposed rule earlier this month.  According to the Service, the species’ population has rebounded considerably since it was originally listed in 1978, when the population estimate was approximately 1,000 individuals.  Now, the Service estimates there is a Great Lakes meta-population with approximately 4,400 individuals, along with an ...

Acting Secretary of the U.S. Department of the Interior, David Bernhardt, recently announced that the U.S. Fish and Wildlife Service (Service) will publish a proposed rule removing federal protections under the Endangered Species Act for the endangered gray wolf (Canis lupus).  Secretary Bernhardt announced the plan at the 84th North American Wildlife & Natural Resources Conference in Denver, Colorado.

The gray wolf was originally listed as endangered in March 1978 throughout the contiguous United States, except in Minnesota, where the Service classified the species as ...

On February 26, 2018, the U.S. Fish and Wildlife Service issued a proposed rule to delist the Borax Lake chub (Gila boraxobius), a small fish that currently resides primarily in a single Oregon lake.  Currently listed as an endangered species, the proposed rule states that the best available scientific and commercial information "indicates that the threats to the Borax Lake chub have been eliminated or reduced to the point where the species no longer meets the definition of an endangered or threatened species under the Endangered Species Act . . . ."  The Federal Register notice ...

On February 6, 2019, a federal judge upheld U.S. Fish and Wildlife Service’s (Service) 90-day finding that a petition to delist the endangered golden-cheeked warbler (Petition) did not present substantial information that delisting the warbler may be warranted (Negative 90-day Finding). In 2015,  various groups and individuals filed the Petition, which, among other things, alleged that because a 2015 study indicated that the golden-cheeked warbler and its habitat were far more abundant than the Service originally believed at the time of the bird’s listing in 1990, the bird ...

In an article published online this week in BioScience, the American Institute of Biological Sciences' scholarly journal, Drs. Dennis Murphy and Paul Weiland contribute to the literature on independent scientific review, focusing on the review of federal agency determinations under the Endangered Species Act. They describe the types of decisions that can benefit from independent scientific review.

They also describe past shortcomings in undertaking such reviews, relying on specific examples from past reviews. Identification of such shortcomings feeds into the principal ...

On January 31, 2019, the U.S. Fish and Wildlife Service (USFWS) announced plans to amend up to 182 Endangered Species Act (ESA) recovery plans, which potentially cover over 305 animal and plant species, over the next year. These amendments will revise each recovery plan to include quantitative recovery criteria as part of the Department of the Interior’s Agency Priority Performance Goals. USFWS kicked off this 12-month push by releasing a notice of availability of 26 draft recovery plan amendments ...

On January 28, 2019, the Superior Court for San Diego County upheld the California Fish and Game Commission’s (Commission) 2015 decision to list the gray wolf (canis lupus) under the California Endangered Species Act (CESA). (Cal. Cattlemen’s Assn. v. Cal. Fish & Game Com. (Super. Ct. San Diego County, 2019, No. 37-2017-00003866-CU-MC-CTL).)

CESA defines an endangered species as a native species or subspecies of bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or ...